Family Law Questions and Answers
What is a Common Law Marriage in Texas?
In Texas, a man and a woman may enter into an informal marriage if 1) they agree to be married, 2) live in Texas as husband and wife, and 3) represent to others in Texas that they are married.
How Long Does it Take to Become Common Law Married?
There is no minimum time period required to become common-law married but both parties must be 18 years or older.
What if we Were Not Married in Texas or the U.S.A.?
Where a man and a woman are married does not matter to invoke the jurisdiction of the Texas courts on family law matters. For example, even if you are married in another state, you can still file for divorce in Texas.
What is the Difference Between Separate and Community Property?
Separate property is that property owned by a spouse prior to marriage. Separate property can also be acquired by a spouse during marriage by gift or inheritance and can include recovery for personal injury. Community Property is presumed to be all property acquired by the parties during the marriage that is not considered Separate Property.
How is Community Property Divided Between Spouses in a Divorce?
During divorce proceedings, the judge divides community property and liabilities in a "just and right" manner. Occasionally, this process may result in the judge awarding more community property to one spouse. In making the division, the judge can consider any relevant factor, which might include evidence of:
- Fault in the break-up of the marriage
- Differences in earning capacities and education
- Age and health of the parties
- Any special needs of the parties
- Separate property or potential for the inheritance of either spouse
What is a Qualified Domestic Relations Order (QDRO)?
A Qualified Domestic Relations Order (QRDO) is required when IRS qualified retirement plans (e.g., IRA or 401k plans) are divided in a divorce decree. The QRDO must meet the requirements of the retirement plan involved.
How Long Does it Take to Get a Divorce in Texas?
The minimum wait period after filing a divorce petition is 60 days when the parties agree on all terms, commonly referred to as an uncontested divorce. Most contested divorces can be concluded within 9-12 months.
How Long Does it Take to Receive Interim Relief?
Interim relief is when the court grants short-term help until a decision is made. If interim relief is needed before the entry of the Final Decree of Divorce, a request for temporary orders is filed with the petition for divorce along with a request for hearing on the temporary orders. A hearing on temporary orders can be obtained within two weeks of the filing of the request.
What Qualifies for Interim Relief in a Divorce Case?
Interim relief can be obtained for such things as who gets use of the house or other property, child support, and spousal support.
What is the Difference Between a Fault and No-fault Divorce?
A divorce settlement can be reached in Texas without either party being at fault. A divorce may also be granted when one party is found to be at fault in the break-up of the marriage. In general, a fault-based divorce can provide a basis for an unequal property division.
What Are Grounds for at Fault Divorce in Texas?
According to the Texas Family Code, grounds for an at fault divorce may include adultery, cruelty, abandonment for a year, or a felony conviction on the part of either spouse.
Additionally, if a couple has been separated and living apart for 3 years, they have grounds for an at fault divorce in Texas.
How Long Do You Have to Be Separated before You Can File for Divorce in Texas?
You are not required to separate before filing for divorce in Texas.
How Long Do You Need to Be a Resident in Texas to File for Divorce?
In order to file for divorce in Texas, you or your spouse have to be a resident of the state for a minimum of 6 months. Additionally, you or your spouse must be a resident of the county you will be filing in for a minimum of 90 days.
Will I Have to Pay Court-Ordered Alimony After a Divorce?
Before a divorce settlement is reached, all income to the marriage relationship is community property, so it is common to have the Court order interim spousal support. For the Court to award alimony after a divorce is finalized is considerably more difficult and the circumstances must meet certain statutory requirements in the Texas Family Code.
How is Child Support Determined?
In Texas, child support is set according to a formula based on the net resources of the parent paying without regard to the parent receiving the support. Net resources are determined using a table in the Texas Family Code and include salary, commissions, overtime, bonuses, dividend income, lottery winnings, etc., etc. If the person paying has no other children than those before the Court, the percent of net resources will be 20% for 1 child, 25% for 2 children, 30% for 3 children, 35% for 4 children, and 40% for 5 children. There are caps and other considerations on child support amounts that may affect some individual payors.
When Does Child Support End in Texas?
According to the Texas Family Code, child support can end when either the child turns 18 OR has graduated from high school.
What is Joint Custody in Texas?
Joint custody, otherwise known as joint managing conservatorship is a sharing of the rights, duties, and powers parents have concerning the children in a marriage. The Courts generally find that it is in the best interest of the children to have a primary residence because of school considerations.
What is Standard Visitation Under the Texas Family Code?
A Standard Possession Order (SPO) is defined by the Texas Family Code and provides for parents that live within 100 miles of each other and for parents that live outside of 100 miles of each other. For parents living within 100 miles of each other, the SPO provides for possession by the parent not establishing the primary residence on the 1st, 3rd, and 5th weekends of the month, Wednesday evenings during the school year, sharing of holidays and spring break, and extended summer visitation.
Can I Get a Modification if My Child Comes To Live With Me?
Unless there is an agreement of parents, or a major negative change in the behavior of the child or of the parent establishing the residence, modification of child custody in Texas is difficult because the best interest of the child is usually stability in his/her home.
How Long Does a Child Custody Case Take in Texas?
The length of time a child custody case takes in Texas can vary depending on the complexity of the case and if an agreement is reached.
At What Age Can a Child Refuse to See a Parent in Texas?
In Texas, minor children under the age of 18 cannot refuse visitation if a court ordered child custody and visitation agreement has been made. However, you can seek for a modification of the original arrangement with the assistance of a Houston child custody lawyer.
Is There a Time Limit on Getting a Court to Adjudicate the Father of a Child?
Yes. Generally, if the child has a presumed father, a suit to determine parentage must be brought before the child’s fourth birthday. If the child does not have a presumed, acknowledged, or adjudicated father the suit to determine parentage may be filed at any time.
Who Can File a Paternity Action?
The following people may file a paternity action:
- The mother
- The man who wants to determine his parentage
- A relative of the child’s mother or alleged father if that parent is deceased
- The child
- A government agency
- Any person closely related to the mother of the child if the mother is deceased.
Can I Recover Attorney’s Fees and Court Costs in a Paternity Action?
Yes. The court must order recovery of attorney’s fee since this action is in the nature of child support.
What is the Process for Adoption in Texas?
Before an adoption can be finalized, the parental rights of the birth parents must be terminated. A petition for adoption must be filed with the proper court, and the child must live with the adoptive parents for at least six months. An ad litem for the child may be appointed and a social study, background check, and criminal history check of the adoptive parents must be performed. Health, social, education, and genetic history report of the child may also be required. Once these matters have been completed, a hearing is held with the court to determine that the adoption is in the best interest of the child.
Do I Get a New Birth Certificate for my Adopted Child?
Yes, upon completing an adoption the child will receive a new birth certificate. The new birth certificate looks identical to any other birth certificate with the names of the adopting parents.
What are the Requirements for a Name Change of an Adult?
With the court’s approval, an adult can have their name changed as part of a divorce proceeding or a separate lawsuit if not part of a divorce. The court will not grant the change if the change is to either avoid criminal prosecution or defraud creditors.
What are the Requirements for a Name Change of a Child in a Divorce?
With the court’s approval, a child's name can be changed. The other parent is entitled to notice of the lawsuit filed to change the name.
What Qualifies as Family Violence?
Family violence is an action or the threat of an action by a member of a family or household against another member of the family or household that is intended to cause physical harm, bodily injury, physical assault, sexual assault or reasonable fear of such action. Abuse toward a child of the family or household and dating violence is also family violence.
Can I File a Protective Order?
For family violence, any adult in a household can file for themselves or any other member of the household, including a child who needs protection.
What is Enforcement?
Enforcement is when a lawsuit is filed against a person for violating a court order.
What Orders Can be Enforced?
Orders for any of the following may be enforced by a family court:
- Child support
- Child visitation
- Property division ordered in a divorce
- Spousal maintenance (alimony)
How Much Does an Enforcement Action Cost?
Attorney’s fees and court costs are generally recoverable in any suit to enforce a court order. The court may order a person to pay attorney’s fees and court costs as a condition of a suspended jail sentence, as well.
Contact a family lawyer in Houston from The Tholstrup Law Firm, L.P. today to schedule a consultation.